Thus, our first task is to categorize
SRC 96.300(a). If it is an ordinance that prohibits only conduct, which is to
say, an ordinance that does not refer to expression at all but that might, in
some circumstances, implicate expression when it is enforced--for example, a
criminal trespass statute enforced against picketers--then the city prevails.
Defendant challenges the ordinance as written; she asserts that the city
violated the constitution when it enacted the ordinance, not as it was applied
against her in the particular circumstances of this case. Such facial
challenges to enactments that do not expressly implicate expression are not
cognizable. State v. Illig-Renn, 341 Or 228, 234, 142 P3d 62 (2006).
On the other hand, if the ordinance focuses on expression per se and not
on preventing harm that might be caused by expression, then defendant wins; in Ciancanelli,
339 Or at 322, the Supreme Court held that even live sex shows were a form of
protected expression under Article I, section 8.

In fact, the ordinance is neither
expression-neutral nor focused on expression per se. The former
argument would have force if the ordinance prohibited a person from receiving
money for sexually touching another person for the purpose of arousing sexual
excitement in the person doing the touching or the person being touched,
and if it did not criminalize "offering" to touch. Arguably, that
would be an ordinance directed against conduct, with no explicit reference to
any expression, even though expression might sometimes occur in the commission
of the act. As the Supreme Court noted in City of Nyssa v. Dufloth/Smith,
339 Or 330, 340-41 n 5, 121 P3d 639 (2005), a "city constitutionally can
regulate * * * sexual contact between performers and patrons, and the fact that
an individual uses speech or expression in the course of that conduct would not
immunize the individual from prosecution." It is true that SRC 96.300(a)
regulates sexual contact between performers and patrons and, if that were all
that it did, we would be faced with an altogether different case. But
regulating the participants in sexual contact is not all that the ordinance
does. Rather, it prohibits sexual contact between one person and another
person "for the purpose of arousing sexual excitement in himself or any
other person." (Emphasis added.) By extending the prohibition to
include--expressly--acts that are intended to arouse an audience or other
nonparticipants, the ordinance loses its expression-neutral character. An act
that is intended to arouse an audience is expression. Ciancanelli, 339
Or at 320-21 (statute criminalizing sex acts occurring in context of live
public shows restrains free expression). Further, it criminalizes
"offering" to touch, and an offer necessarily involves expression.
SRC 96.300(a), then, by its terms ("arousing sexual excitement in * * *
any other person"), restrains expression.

At the same time, we conclude that
the ordinance is not directed at or focused on speech per se. That is
so because the offense can be committed without the recipient of the fee
engaging in any expressive conduct, as that concept is defined for purposes of
Article I, section 8. Under that provision, performing sexual acts, without an
audience, is pure conduct and is not considered protected expression for
purposes of Article I, section 8. Ciancanelli, 339 Or at 323; City
of Nyssa, 339 Or at 340-41 n 5.

SRC 96.300(a), we conclude, falls
within the second category of speech laws that are described in Robertson:
laws that focus on preventing harm, but expressly proscribe expression as one
means of achieving that harm. An example is the coercion statute at issue in Robertson,
293 Or at 413-14. In analyzing the constitutionality of that statute, the
court explained:

"The coercion statute is written so as to focus on a
forbidden effect--the effect of frightening another person into a nonobligatory
and undesired course of conduct. But the statute continues by specifying that
the compulsion or inducement may not be imposed in aid of a 'demand,' and by
means of specified verbal warnings or threats. * * * When the proscribed means include
speech or writing, however, even a law written to focus on a forbidden effect *
* * must be scrutinized to determine whether it appears to reach privileged
communication or whether it can be interpreted to avoid such
'overbreadth.'"

Id. at 417-18. SRC 96.300(a), by similar reasoning,
is written so as to focus on a forbidden harm--sexually stimulating another
person for pay. That harm can occur when the stimulated person is an audience,
that is, when the means of achieving the harm necessarily involves expression.
The ordinance, then, must be examined for overbreadth.

That examination is not difficult.
An enactment is overbroad for purposes of Article I, section 8, when "it
appears to reach privileged communication." Robertson, 293 Or at
417-18. SRC 96.300(a) clearly does just that. Most obviously, it
imposes criminal sanctions for performing live sex shows, which, under Ciancanelli,
is privileged communication. 339 Or at 322. Less controversially, it would
also impose criminal sanctions on an actor who, for pay, engages in a sexually
provocative scene for the purpose of arousing the audience. Had "From
Here to Eternity," for example, been filmed in Salem, Oregon, Deborah Kerr
and Burt Lancaster could have been exposed to prosecution for their paid
participation in the classic scene in which they embrace (that is, touch each
other's clothed bodies), supine, on a beach, while waves wash over them--a
scene that, a prosecutor could convincingly argue, had the purpose of
"arousing" in the viewer "sexual excitement," SRC
96.300(a), that is, "the sensual experiences of humans engaging in or
witnessing sexual conduct or nudity," SCR 96.050(c). Other examples from
mainstream film and stage performances are numerous and obvious. Indeed, it is
difficult to imagine a playbill at the local multiplex that would not feature
several films containing scenes in which a performer had received money for
touching another person for the purpose, among other things, of arousing in the
audience "the sensual experiences of humans engaging in or witnessing
sexual contact or nudity." We conclude that the challenged ordinance
reaches a significant amount of protected expression.

That conclusion, however, does not
end our inquiry. We have the responsibility to interpret enactments, if
possible, to avoid overbreadth. Robertson, 293 Or at 417-18, 436-37.
At oral argument, it was suggested that, by merely changing the phrase "any
other person" to "the other person," and removing the
phrase "or offering to touch," thereby removing the explicit
references to expression, we could salvage SRC 96.300(a) by transforming it
into a statute that focused exclusively on regulable conduct:

"It shall be unlawful for any person to pay
a fee, or to receive a fee, directly or indirectly, for touching the clothed or
unclothed body of another person for the purpose of arousing sexual excitement
in himself or the other person."

Indeed, we could leave in the reference to "offering to
touch," and, although the ordinance would still implicate expression, that
expression might arguably fall within a well-settled historical exception for
soliciting prostitution.

We conclude that such judicial
surgery is not possible in this situation, for two reasons. First, nothing in
the record implies that those who enacted the ordinance intended it to have the
narrow focus that would result from the suggested alterations. Second, we
recognize a sharp distinction between judicial interpretation, which is
permissible, and redrafting, which is not. Interpretation includes choosing
from among competing definitions, resolving ambiguities, or explicating the
meaning of the terms in the enactment. Redrafting, on the other hand, includes
completely eliminating a word, phrase, or concept that the original text
clearly and intentionally includes or adding a completely new word, phrase, or
concept that it does not, contrary to ORS 174.010 (judges are "not to
insert what has been omitted, or to omit what has been inserted").
Imposing the suggested changes to SRC 96.300(a), even if they would salvage its
constitutionality (a conclusion that we have no occasion to decide here), would
require redrafting. The ordinance is fatally overbroad and, if the city wants
to narrow it, that is the city's prerogative and not ours.